Browsed byMonth: May 2017

There is no such thing as a black list. It simply means that there are negative data on your credit report that is hosted at a Credit Bureau. This negative data can be anything, from a plain collection on one of your loans right through Judgment data or even Debt review.

This negative data will have an impact on your ability to get loans or open retail accounts as the credit provider will see this negative behaviour towards your current credit as a potential way that you will handle their loan; if granted.

A Credit bureau is an organisation that keeps a record of your credit information. Your credit record shows how you manage your debts and is used by credit providers and moneylenders to decide if you can afford to borrow money or pay back a new loan.

The National Credit Act says each credit bureau must be registered with the National Credit Regulator – who decides how your credit information can be used and who can see your credit record.

What is the role of a Credit Bureau?

When you take out your first loan with a credit provider, you have to fill in a form that asks for consumer credit information – including your credit history, financial history, education, employment and identity details. This information, and the details of the loan, is given to a credit bureau that then puts together credit report.

What are your rights regarding a Credit Bureau?

To be told that a credit provider intends to report negative information on you to a credit bureau 20 working days before they do so

To get a copy of your credit record from a credit bureau when you ask for it – you can get one free record each year but may be charged a small fee for further records

To challenge information kept by a credit bureau if you are unhappy with it

For your information to be kept confidential, and for it to be used only for the purposes that are allowed

How can your credit information be used?

To decide whether or not you can afford credit

To investigate fraud, corruption or theft

To consider you for employment in a position that requires trust, honesty and the handling of cash or finances

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

My spouse said that he/she won’t ‘give me a divorce’. What can I do? Your spouse can oppose the divorce, but it is the Court that grants a divorce, not your spouse. If you convince the court that the marital relationship has irretrievably broken down, the court can grant a decree of divorce even if your spouse does not want to get divorced.

There is a process, called a ‘rule 58’ application, whereby you can ask the court to give an order regarding the care of and access to the children and maintenance pending the finalisation of the divorce. You can even ask for a contribution to your legal costs.

How much does it cost?

In the case of an unopposed divorce (i.e. there is no dispute between yourself and your spouse about the divorce or what should happen), your fees are likely to be limited to the Sheriff’s fees and minor expenses for transport, photocopies, etc. Sheriff’s fees can vary widely, depending on the distance he has to travel and how many attempts he has to make at serving pleadings on the opposing party, but generally these fees would be a few hundred rand. Where a divorce is opposed, the costs become unpredictable and entirely dependant on the specifics of the case.

How long does it take?

Where a divorce is unopposed and there are no complications or children involved, it can sometimes be finalised in as little as four weeks.

Where a divorce is opposed, it can easily take two to three years, or more. In most cases, however, divorces get settled before the parties have to go to Court – even where the divorce started out as an opposed divorce. As soon as the parties in an opposed divorce reach a settlement agreement and the divorce becomes unopposed, it can again be possible to finalise the divorce in as little as four weeks.

What you need to do

Before you approach the Court to start divorce proceedings, you will should get certified copies of as many of the following documents as you can:

Your identity document

Your Ante-Nuptial Agreement, if any

The children’s births certificates, if any and

Your marriage certificate

Also make sure you have the following information handy:

Your full names, surname, identity number, occupation and place of residence

Your spouse’s full names, surname, identity number, occupation and place of residence

Date when you got married and where the marriage took place

Children’s full names, surnames, identity numbers and

Comprehensive details of any funds (such as pension funds, retirement annuities and provident funds) which you or your spouse belongs to.

You may institute divorce proceedings in either a High Court or Magistrates’ Court (Regional Court), but where the parties are representing themselves in a simple divorce, they should approach the Regional Court.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

We are proud to announce that two of our Attorneys obtained further qualifications.

Riëtte Smuts was admitted as a Notary Public and Michelle Taljaard was admitted as a Conveyancer.

Riëtte matriculated in 2002 and completed her diploma in Secretarial Studies in 2004 at Durbanville College. She started her career as a conveyancing secretary in November 2004. She studied part-time through UNISA from 2006 and obtained her LLB degree in 2012.

She completed her articles at Honey Attorneys (now Brink de Beer Potgieter) and was admitted as an Attorney and Conveyancer in February 2014 and now as a Notary Public in May 2017.

She joined the MHI team as a Professional Assistant to Jurgens Tubb in August 2014. Riëtte specializes in Property Law. She heads up the Transfer Department as well as the Bond department where she deals with instructions from the four major banks.

Riëtte believes in honesty and integrity and takes great pride in her work. She always strives to provide the best service to her clients.

Michelle matriculated in 2003 from DF Malan High School and while working in the digital publishing industry, she studied part-time through UNISA from 2006. She obtained her LLB degree in 2013 and joined MHI Attorneys for her two years clerkship in 2014.

Michelle was admitted as an Attorney and Notary Public in June 2016, and now as a Conveyancer in May 2017.

Once admitted, she became a Professional Assistant at the firm. Together with director Stefanus Malherbe, Michelle specializes in Property and Commercial Law, as well as property related litigation.

Michelle believes hard work and determination is the key to success.

At MHI we encourage our personnel to expand their expertise to be able to deliver the best service to you, our client.

The municipality authorises the development of a nightclub in your neighbourhood. You and your neighbours are concerned about this and want to challenge the municipality’s decision. Such a decision by a municipality, or another organ of state, has ‘direct and immediate consequences for individuals or groups of individuals’ and amounts to administrative action. When administrative action adversely affects the rights of an individual then the administrative action may be judicially challenged on 3 grounds: (1) lawfulness; (2) procedural fairness; and (3) reasonableness.

(1) LAWFULNESS

The Constitutional Court in Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 held that administrators (i.e. municipalities or other organs of state) may exercise no power and perform no function beyond that conferred upon the by law. Lawfulness is divided into 3 categories:

(i) Authority

When an administrator lacks authority, it means that there is nothing in the law that allows the administrator (in this case, the municipality) to take that decision. There may be other reasons why an administrator does not have authority to make a decision e.g. there was unlawful delegation of decision-making power; the administrator cited the wrong legislation as the basis of their administrative action; or the administrator acted beyond the scope of the power granted to them by the empowering provision.

(ii) Jurisdiction

Jurisdiction refers to an administrator’s entitlement to act. All the prerequisites of the empowering legislation must be met before the administrator is entitled to make a decision. Absent these prerequisites, the administrator would be acting unlawfully. An example would be where the legislation only empowers a Director General to make a decision when a report from a building inspector concluding they are satisfied with the plans submitted. When the Director General makes a decision without having such a report, they are acting without jurisdiction.

(iii) Abuse of discretion –

This is when the administrator is authorised to act and is acting within their jurisdiction, but their discretion is being abused. An administrator can abuse their discretion by: limit themselves to rigidly following a practice guideline; acting for an ulterior motive or in bad faith; failing to act; failing to consider relevant considerations or for taking irrelevant considerations into account; for acting capriciously; and lastly, for failing to apply their mind.

In our case where the municipality authorises the development of a nightclub in a quiet neighbourhood, the decision-maker may have abused their discretion by failing to consider that the area is zoned “residential” and not for “entertainment”.

(2) PROCEDURAL FAIRNESS

Section 3(1) of PAJA provides that administrative action must be procedurally fair. What is procedurally fair depends on the circumstances in each case according to s 3(2)(a) of PAJA. Generally, an administrator is required to provide: (i) adequate notice of the nature and purpose of the proposed administrative action; (ii) provide persons who would be affected a reasonable opportunity to express their concerns; (iii) the administrator should provide a clear statement of the administrative action; (iv) adequate notice of any right of review or internal appeal should be given; and lastly (v) adequate notice of the right to request reasons should also be given. The ultimate question would be whether a person’s right to be heard has adversely been affected by the procedure the administrator followed.

In our case, if the nightclub construction begins without the municipality having informed the community of its decision, then its decision would be procedurally unfair.

(3) REASONABLENESS

The court in Minister of Health NO v New Clicks SA (Pty) Ltd 2006 (2) SA 311 (CC) held that reasonableness entails rationality and proportionality. A decision must thus be rational. Proportionality requires that: (1) the decision must have a legitimate goal; (2) the decision must be objectively capable of achieving that goal; (3) there must be no ‘less harmful/restrictive means to the same goal; and (4) the decision’s adverse side-effects must not be out of all proportion to its benefits.

What is reasonable may differ on different facts. An example of an unreasonable decision would be where there is a faulty electrical supply in one house and the municipality decides to disable the entire neighbourhood’s electricity for 3 days.

CONCLUSION

The remedies available are set out in s 8 of PAJA. The default remedy when reviewing administrative action is setting aside the decision and referring it back to the administrator to decide upon it again, but this time acting within their authority, considering all the relevant information, acting procedurally fairly and reasonably. Only in limited circumstances would the court actually step into the shoes of the administrator and substitute its own decision for that of the administrator.

In our case, the municipality would have to decide again on whether to authorise the development of a nightclub in a quiet neighbourhood, but it must consider how the area has been zoned, it must give people the chance to express their concerns, they must ultimately take a reasonable decision.

Challenging administrative action legally is open to any person whose rights have adversely been affected by administrative action. Should you wish to know more, contact our offices.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)